APPEARANCE

APPEARANCE

A coming into court by a party to a suit, either in person or through an attorney, whether as plaintiff or defendant. The formal proceeding by which a defendant submits to the jurisdiction of the court. The voluntary submission to a court’s jurisdiction.

In a criminal prosecution, an appearance is the initial court proceeding in which a defendant is first brought before a judge. The conduct of an appearance is governed by state and federal rules of CRIMINAL PROCEDURE. The rules vary from state to state, but they are generally consistent. During an appearance, the judge advises the defendant of the charges and of the defendant’s rights, considers bail or other conditions of release, and schedules a PRELIMINARY HEARING. If the crime charged is a misdemeanor, the defendant may sometimes, depending on the local rules of court, enter a plea of guilty or not guilty at the initial appearance; if the crime is a felony, the defendant usually enters the plea at a later court proceeding. A criminal defendant may have an attorney present and may confer with the attorney during the appearance.

In some situations, a defendant may not need to appear in court in person and may even
make an appearance by mail. For example, when individuals receive traffic tickets they may choose to send in a check for the amount of the fine.

Many state statutes permit appearances to be
made by two-way, closed-circuit television. For
instance, North Carolina’s rule on video appear-
ances reads:

A first appearance in a noncapital case may
be conducted by an audio and video trans-
mission between the judge and defendant in
which the parties can see and hear each other.
If the defendant has counsel, the defendant
shall be allowed to communicate fully and
confidentially with his attorney during the
proceeding (N.C. Gen. Stat. § 15A-601(a1)
[1994]).

An appearance is also a coming into court as
a party to a civil lawsuit. Although an appear-
ance can be made by either the plaintiff (the one
who has sued) or the defendant (the one being
sued), the term most often refers to the action of
the defendant.

The subject of appearance is closely related
to the subject of PERSONAL JURISDICTION,
which is the court’s authority over an individual
party. An appearance is some OVERT ACT by
which the defendant comes before the court to
either submit to or challenge the court’s juris-
diction.

Any party can appear either in person or
through an attorney or a duly authorized representative; the party need not be physically pres-
ent. In most instances, an attorney makes the
appearance. An appearance can also be made by
filing a notice of appearance with the clerk of
the court and the plaintiff, which states that the
defendant will either submit to the authority of
the court or challenge its jurisdiction. In a law-
suit involving multiple defendants, an appear-
ance by one is not an appearance for the others.
Valid SERVICE OF PROCESS is not required
before an appearance can be made.
Historically, appearances have been classi-
fied with a variety of names indicating their
manner or significance. A compulsory appear-
ance is compelled by process served on the party.
A conditional appearance is coupled with condi-
tions as to its becoming or being taken as a gen-
eral appearance (defined later in this article). A
corporal appearance indicates that the person is
physically present in court. A de bene esse (Latin,
“of well being,” sufficient for the present)
appearance is provisional and will remain good
only upon a future contingency. A gratis (Latin,
“free” or “freely”) appearance is made by a party
to the action before the service of any process or
legal notice to appear. An optional appearance is
entered by a person who is intervening in the
action to protect his or her own interests,
though not joined as a party. A subsequent
appearance is made by a defendant after an
appearance has already been entered for him or
her by the plaintiff. Finally, a voluntary appear-
ance is entered by a party’s own will or consent,
without service of process, although process
might be outstanding.

The two most common categories of
appearances are general and special.

General Appearance

Any action by which the defendant recog-
nizes the jurisdiction of the court constitutes a
general appearance. This is an unqualified sub-
mission to the court’s personal jurisdiction over
the defendant and is treated as the equivalent of
a valid service of process.

By making a general appearance, the defen-
dant agrees that the court has the power to bind
her or him by its actions and waives the right to
raise any jurisdictional defects (e.g., by claiming
that the service of process was improper). The
defendant also waives the objection that the case
is brought in the wrong venue. The defendant
does not, however, waive any substantive rights
or defenses, such as the claim that the court
lacks jurisdiction over the subject matter of the
case or authority to hear the particular type of
case (e.g., a BANKRUPTCY court will not hear
personal injury cases).

Special Appearance

A special appearance is one made for a lim-
ited purpose. It can be made, for example, to
challenge the sufficiency of the service of
process. But most often, a special appearance is
made to challenge the court’s personal jurisdic-
tion over the defendant. It prevents a default
judgment from being rendered against the
defendant for failing to file a PLEADING.(A
default judgment is an automatic loss for failing
to answer the complaint properly.)
When a defendant makes a special appear-
ance, no other issues may be raised without that
appearance’s becoming a general appearance. If
a party takes any action dealing with the merits
of the case, the party is deemed to have made a
general appearance and submitted to the juris-
diction of the court.

If a challenge is successful and the court
agrees that it does not have personal jurisdiction
over the defendant, it will dismiss the action. If
the court finds against the defendant on that
issue, that decision can later be appealed.
The right to make a special appearance is
almost universally recognized, except where
abolished by statute. As a rule, leave of court
(permission) must be obtained before a special
appearance can be made, but this is not always the case.

Federal Rules

Federal courts and states that have adopted
the Federal Rules of Civil Procedure have eliminated
the distinction between a general and a
special appearance. Instead of challenging the
court’s personal jurisdiction in a special appearance,
a defendant can do so by use of a pretrial
motion to dismiss the CAUSE OF ACTION, or in
an answer to the complaint. A removal proceeding,
in which a defendant asks to have the case
moved from state court to federal court, is
regarded as a special appearance.

Limited Appearance

In a number of states, a defendant in a lawsuit
based on QUASI IN REM JURISDICTION may
make a limited appearance. Quasi in rem is a
Latin phrase for a type of jurisdiction in which
the court has power over the defendant’s property
because it lies within the geographic
boundaries of the court’s jurisdiction. The presence
of the property gives the court jurisdiction
over the person of the defendant. To invoke
quasi in rem jurisdiction, the court must find
some connection between the property and the
subject matter of the lawsuit.

A limited appearance enables a defendant to
defend the action on the merits, but should the
defendant lose, he or she will be held liable only
up to the value of the identified property and
not for all possible damages. A defendant who
makes a limited appearance and wins the case
can be sued again by the same plaintiff in a different
court.

In states that have no provision for a limited
appearance, a defendant can avoid being subject
to the personal jurisdiction of the court by
refusing to appear, thereby causing a default and
a consequent FORFEITURE of the property. Or
the defendant can submit to the court’s personal
jurisdiction, defend the case on its merits, and
face the possibility of full liability. The defendant
must decide which course of action is best,
after comparing the value of the seized property
with the damages being sought by the plaintiff
and considering the likelihood of winning the
case at trial.

The Federal Rules of Civil Procedure do not
provide for limited appearances in federal court
but instead defer to state law on that issue. A
slightly greater number of courts permit limited
appearances than do not. The law of the jurisdiction
in which the action is brought must be
consulted to determine whether limited appearances
are permitted.

Withdrawal

If an appearance has been entered through
FRAUD or mistake or after the plaintiff ’s complaint
has been materially amended, the discretion
of the court may permit the appearance to
be withdrawn. A proper withdrawal is treated as
if no appearance at all had been entered in the
case. A defendant who has withdrawn a general
appearance may ask the court for leave to file a
special appearance to challenge the court’s jurisdiction.
If someone makes an unauthorized appearance
on behalf of the defendant, it may be
stricken or set aside by a motion of any party
with an interest in the proceeding.
Delay or Failure to Appear

A defendant who fails to appear in court
pursuant to a service of process might have a
default judgment entered against her or him and
be held in CONTEMPT of court. A failure to
appear does not, however, result in a waiver of
objections to the court’s jurisdiction.
If a defendant fails to make an appearance in
the time allotted by statute or court rules, he or
she may lose certain rights. But if the circumstances
warrant it, a court may extend the time
of appearance.

FURTHER READINGS
Weinreb, Lloyd L. 2001. 2001 Supplement to Criminal Process:
Cases, Comments, Questions. Eagan,Minn.: Foundation.
Yeazell, Stephen C. 1998. Federal Rules of Civil Procedures:
With Selected Statutes and Cases. Gaithersburg, Md.:
Aspen.

CROSS-REFERENCES
Civil Procedure.